Q) I am a US citizen who married a Korean wife. We moved to California 5 years ago.  This year, she suddenly left and refused to return home with our son.  It has been 3 months but she flat out denies my right to be with him.  I am not abusive nor have I ever been violent towards her or our son.  I have already sent in my Hague Convention Application to the U.S. State Department to start the Hague process. I would like to know if your firm has handled Hague cases for International Parental Child Abduction.

South Korea Is a Contracting Nation to Hague Child Abduction Convention

On December 13, 2012, South Korea had become the 89th contracting nation to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”, please refer to our previous article).

Hague Child Abduction Convention aims to secure the prompt return of the children. The subject of the Convention is a child under the age of 16 who was wrongfully removed or retained from his country of habitual residence.

Our office had dealt with the first Hague international child abduction case at the Seoul Family Court. And we succeeded in getting the child back to her habitual residence. (The case was settled by the respondent’s voluntary return after we had filed an application with the court)

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Every Korean male citizen has a duty of military service as prescribed by the Military Service Act.  Usually, most Korean male undergoes a draft physical examination at the age of 19. And they become exempt from the liability of enlistment from January 1 of the year when he turns into 38.

There were cases that young Koreans traveled abroad and refused to return in an attempt to run away from the conscription. Facing this problem, the Korean government had implemented an overseas travel permit system. It is basically requiring any Korean male with a military duty to obtain a travel permission. Otherwise, they can’t have overseas travel. Violation of this rule results in a criminal conviction in Korea.

This overseas travel permit, however, had created so many careless offenders. Especially those born in or immigrated to a foreign country at an early age was ignorant of this system. In some cases, they were in dual citizenship status, and they don’t think of themselves as Korean. But, the chances are, under Korean citizenship law, they are still under the regulation of the Korean Military Service Act.

The good news is that the Korean government had implemented a special exception to the overseas travel permit and conscription. This applied to a Korean who was born abroad or lives abroad for a long period of time.

In this article, our Korean military law attorney will explain the basics of the overseas travel permit and the military service duty of any overseas Korean immigrant.

Overseas Travel Permit

Any Korean male between the age of 25 and 37 who hasn’t yet fulfilled his military service duty and wishes to travel or stay overseas needs to get an overseas travel permission from the Military Manpower Administration (MMA).

If the person departed Korea before the age of 25, he must receive this travel permit by January 15 of the year he turns 25.

The permitted period of foreign travel and stay is determined by the purpose of the travel/stay.  The enforcement decree of the Military Service Act provides a detail of the permitted period for each purpose.  

If you need to stay over the period originally granted, you should apply for an overseas travel period extension permit.

Special Treatment for Overseas Korean Immigrants

There are several exactions applicable to overseas Korean immigrants.  One of them is a Korean who or whose parent obtained foreign citizenship or a permanent resident status before the age of 25.  If this type of person has lived abroad with his parents continuously, he is deemed to obtain an overseas travel permit until the age of 37. (“Automatic Overseas Travel Permit”)

What does this “age of 37” mean?  As explained, the Korean military service duty becomes extinct from January 1 of the year when he turns into 38.  That said, the Automatic Overseas Travel Permit practically gives an exemption from military service, so long as the travel permit is still intact.

Cancellation of Overseas Travel Permit

Yes, the MMA can cancel the Automatic Overseas Travel Permit.  The Automatic Overseas Travel Permit for overseas Korean immigrants is established to respect the continuity of foreign life.  Therefore, if the Korean immigrant’s life actually centers in South Korea, It is a natural logic that this special treatment shall not be given.

As a result, the Korean Military Service Act sets out certain events that trigger the cancellation of the automatic Overseas Travel Permit.  One of them is when the person stays more than 6 months in any year or when the person engages in any for-profit activities in Korea.

Special Treatment for Second-Generation Koreans

What is the Second-Generation Korean?

A certain category of Korean immigrants can stay longer than 6 months without putting themselves at risk of conscription.  It is called a second-generation Koreans.

Under Korean law, a second-generation Korean refers to a person who himself and his parents have continued to reside in a foreign country until the age of 17 after he was born in a foreign country (including any person who left Korea for a foreign country before he turned 6 years of age) and falls under certain requirements.  One of those requirements is a person who has obtained foreign citizenship or permanent residency status. So, for example, if you were born in the U.S and you and your parents were naturalized as U.S. citizens, you can say that you are a second-generation Korean.

It should, however, be noted that, if the person had stayed in Korea for a total of 90 days or more in a period of any year between the age of 7 and 17, he cannot be registered as a second-generation Korean.

The person can get a confirmation of a second-generation Korean status by filing an application with the MMA.

Benefit of Second-Generation Koreans

When you are a second-generation Korean, your military service duty is automatically deferred to the age of 37. And, more importantly, unlike other overseas Korean emigrants, you can stay in Korea up to 3 years after turning 18.

Revocation of Second-Generation Korean Status

If your days of stay in Korea exceed 3 years, your qualification as a second-generation Korean is revoked. But this does not mean you are automatically conscripted. Your oversea travel permit until the age of 37 as a Korean immigrant is still valid. Thus, you will be conscripted only when you violate the oversea travel permits. Most common events are staying 6 months or more per year in Korea or working for profits in Korea.

Call for Attention : Potential Criminal Liability

Korean laws on military service are very complicated. They keep changing and this requires special attention. For example, the automatic overseas travel permit system didn’t exist back in the old days. Due to this, we have seen many cases where the Korean immigrants to the U.S. had become the criminals in Korea due to their ignorance of the overseas travel permit system. The Korean prosecutors and Korean courts issue a search warrant and their Korea passport cannot be re-issued or extended. When they try to pass the Korean border, they can be arrested by the immigration officer. Although we have successfully represented those people to clear their criminal charges while they stay in the U.S. and don’t come to Korea, it is always advisable to have a consultation with a Korean lawyer in advance to verify your status under the Korean military Service Act.

For further information, please contact us by clicking here.

Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations. 

© 2020 All rights reserved.

Globalization has brought a unique situation to our assets management. Your asset portfolio is diversified. Now you live in New York, but you own a condominium in Seoul at the same time. Having a bank account and stocks in Korea is very common for the expats and people who have family in Korea. You should manage them while you live each and every day. And you should also have an estate plan in place regarding how your foreign assets shall be managed and distributed to your loved ones when you pass away.

Every jurisdiction has its own laws and procedures to govern the decedent’s assets located within its territory. Thus, having an estate plan pursuant to the New York Law does not guarantee that your wishes and priorities in the estate plan shall be honored in a foreign country. That’s why you need to set up a foreign estate plan according to the law of the country where the assets are located.

In this article, our Korean estate planning lawyer explains the basics of estate planning in Korea. We will discuss typical instruments under Korean law that you can make use of, which are a will, a living trust, and a power of attorney.

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This week a story of an overseas adoptee caugth our attention. She had succeeded in finding her birth father in South Korea after getting a DNA test order from the Korean Family Court. The news calls for an attention how hard it is for some undocumented adoptees to find their birth parents in Korea.

It is true that back in old days Korean government was not so strict in regulating the foreign adotion. Some children had been adopted without having the corrent documentations about their origins.

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Like many other countries, South Korea has its own merger notification & competition review regimes.  This means if your M&A deal involving a Korean company or business meets the merger notification thresholds prescribed in the rules of the Korean competition authority, you need to make a merger filing. And your transaction becomes subject to the authority’s competition review.  Thus, it is imperative that the dealmakers should be fully advised on the Korean merger filing rules for the applicability and for any potential risks.

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Living abroad is stressful. Suffering injury by accident in a foreign country would be one of the worst cases you don’t even want to imagine. Our office is providing legal advice and representation for foreign victims to seek damages in various types of accidents.

In this article, our personal injury lawyer in Seoul, Korea explains what you need to know about the personal injury lawyers in Korea and what you can expect from them.

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그림 2[Updated on March 20th, 2020] In South Korea, the immigration office may remove or deport from South Korea any person who violated the Immigration Control Act(“ICA”).  Any person who is released after receiving a sentence of fine, imprisonment or heavier punishment could be removed from Korea by an exit or a deportation order pursuant to ICA.  In this article, we will provide a general overview of an exit and deportation order under Korean immigration law. (more…)

Q) I would like to enquire about a situation of a director working at a Korean subsidiary (corporation) of U.S. company, who has secretly started a similar trade of business while still in employment with his current employer.  Having served in a managerial position, he has access to his employer’s full clientele’s information, trade secret and now he started the same business as his employer, directly causing many economic losses to his employer.  Is there any way legally to prevent the person from causing further damages?  

A) Under Korean law, a director of a corporation bears a fiduciary duty.  Thus the directors shall perform their duties in good faith for the interest of the company. Their activities shall not violate the statutes and the articles of incorporation of the company. (more…)

[Updated: May 6, 2020]

There was a news report that more than half of the foreign workers in South Korea are not aware of the fact that they can claim for the severance pay.   Yes, Korean labor law recognizes severance pay.  It is being regulated by the Guarantee of Workers’ Retirement Benefits Act(“GWRBA”).  In this article, we will provide you a guide to the general ideas of how severance pay works, who gets it and how much in Korea. (more…)